Constitutional Amendments

Constitutional Amendments All twenty‐seven amendments that have become the law of the land have been proposed by two‐thirds majorities in both houses of Congress and ratified by three‐fourths of the states. In some instances, the framers of these amendments aimed them directly at the Court; in most cases, however, the amendments have themselves fueled the justices' workload. Taken together with the high court's interpretation of them, these amendments are a barometer of the social, economic, and political change within the constitutional system.

The first ten constitutional amendments have been the most protean source of judicial interpretation. The first eight guaranteed individual liberties, and the ninth and tenth were adopted as assurances that nondelegated powers would remain with the states and the people. None of the ten amendments altered the structure of the new government, but the first eight gave recourse to the courts in cases where individuals thought their rights were being violated. Initially, the Court had little directly to do with the Bill of Rights, since its provisions were held to apply only against the national government. Indeed, in Barron v. Baltimore (1833), the justices decided as much. After the Fourteenth Amendment specified that states could not deprive any person of “due process of law,” however, the Court began increasingly to look to the provisions in the Bill of Rights as guides to the meaning of this Due Process Clause. Guarantees once applied only to the national government were gradually “absorbed” or “incorporated” into the Fourteenth Amendment and applied to the states (see Incorporation Doctrine). Thus, in Gitlow v. New York (1925), the Court ruled that freedom of speech (formerly guaranteed only by the First Amendment) might now be considered to be protected against state invasion as well. The Court has subsequently heard a myriad of state cases involving such controversial issues as the regulation of obscenity, sedition laws, advertising by attorneys (see Bar Advertising), and symbolic speech acts such as picketing, wearing arm bands, flag burning, and the like.

The nineteenth‐century Supreme Court became involved with constitutional amendments in other ways. The Eleventh Amendment was arguably less important for what it did than for the fact that it established the amending mechanism as a way of reversing judicial decisions and restricting judicial jurisdiction (see Reversals of Court Decisions by Amendment). This amendment was ratified in 1798 in reaction to Chisholm v. Georgia (1793), in which the Court, contrary to some Federalist interpretations during debates over ratification of the U.S. Constitution, but arguably in accord with the literal words of Article III, had accepted a suit instituted against Georgia for payment of a debt by a citizen of another state. Narrowly interpreted by the Marshall Court, this amendment was construed more expansively after the Civil War and was later again interpreted more restrictively.

Perhaps the most notable nineteenth‐century collision between the Court and the amending process involved the great constitutional debate over the extension of slavery into the territories. In Scott v. Sandford (1857), the Court denied congressional power to exclude slavery in such areas and further declared that blacks were not and could not become citizens of the United States. But three amendments adopted after the Civil War overturned the Court's most infamous decision. The Thirteenth Amendment prohibited involuntary servitude except as punishment for crimes. The Fourteenth Amendment declared that “[a]ll persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens. …” Three provisions in this section extended to such citizens the “privileges or immunities” of citizenship as well as “due process” and “equal protection” of the law against state action.

The guarantees of the Fourteenth Amendment were in tension with the federal system, and a series of Court decisions demonstrated anew the complex relationship between change effected by amendment and change brought about by judicial interpretation. Cases narrowly interpreting the Fourteenth Amendment included the Slaughterhouse Cases (1873), restricting the Privileges or Immunities Clause; the Civil Rights Cases (1883), limiting protection against discrimination to cases of “state action”; and Plessy v. Ferguson (1896), sanctioning state‐mandated segregation as long as facilities were equal (see Separate but Equal Doctrine). The Privileges or Immunities Clause was damaged beyond repair; the Equal Protection Clause would later gain new life when, in Brown v. Board of Education (1954), the Court overturned Plessy and when Baker v. Carr (1962) opened the door to application of equal protection analysis to legislative apportionment (see Reapportionment Cases). Similarly, the Due Process Clause—increasingly applied at the end of the nineteenth century to the protection of industries (legally recognized as “persons”) against regulations—became the mechanism in the twentieth century by which most of the guarantees in the Bill of Rights, once applicable only to the national government, were now applied to the states as well.

The last of the three Civil War amendments, the Fifteenth Amendment, ratified in 1870, was designed to prevent citizens' voting rights from being abridged on the basis of color. The adoption of grandfather clauses, poll taxes, literacy tests, and white primaries effectively nullified this amendment well into the second half of the twentieth century. About this time, however, it came to serve as the basis of such cases as Smith v. Allwright (1944)—outlawing the all‐white primary—and others (see Vote, Right to).

The four amendments ratified from 1913 through 1920 were products of the Progressive movement (see Progressivism). The Sixteenth Amendment was the third to overturn a Supreme Court decision. Legalizing the income tax after the Court had declared in Pollock v. Farmers' Loan & Trust Co. (1895) that this tax was void, the amendment presented the opportunity both to put government programs on a solid financial footing and to redistribute income. This latter possibility, with its overtones of socialism, appears to have motivated the Pollock decision more than constitutional language that was ambiguous. Although the Seventeenth Amendment, which provided for the direct election of senators, did not stir litigation, the far more controversial Eighteenth did. Nonetheless, the justices willingly acceded to the constitutional prohibition on alcohol in the National Prohibition Cases (1920) and in U.S. v. Sprague (1931) and allowed expansion of prohibition legislation already in force during World War I. The new amendment spawned a number of important cases, including Carroll v. United States (1925) and Olmstead v. United States (1928), both related to searches and seizures (see Fourth Amendment). The only amendment ever formally repealed—by the Twenty‐First Amendment ratified in 1933 by state conventions, rather than, as all other amendments to date, by state legislatures—the Eighteenth Amendment is more frequently remembered for the widespread disobedience it spawned and the boost it gave to organized crime than for its more “noble” motives. The Nineteenth Amendment, ratified in 1920, extended voting rights to women. The amendment had been preceded by years of suffragette activity and marks America's greatest expansion of the franchise. Like the earlier Prohibition amendment, the Nineteenth Amendment was accepted in Leser v. Garnett (1922) as a legitimate exercise of the amending power.

Not all efforts in the Progressive Era to overcome Supreme Court decisions were successful. A proposed child labor amendment was both prompted by judicial decisions, like Hammer v. Dagenhart (1918) and Bailey v. Drexel Furniture Co. (1922), declaring national child labor laws to be unconstitutional, and mooted by a subsequent judicial reversal of this stance in United States v. Darby Lumber Co. (1941).

The Court has also figured prominently in determining the exact scope of constitutional amendments, often doing through judicial authority what the Congress refused to do in the amending process. For example, the Twenty‐fourth Amendment overturned the poll tax in federal elections, but it was the Supreme Court's decision in Harper v. Virginia State Board of Elections (1966) that abolished the tax on the state level. The Congress and the states retain significant power to broaden constitutional protections beyond what the Court is willing to do. The Twenty‐sixth Amendment extended the right to vote to eighteen‐year‐olds after the Court declared in Oregon v. Mitchell (1970) that congressional legislation by itself could only extend the vote in national elections, and not in state and local contests.

In 1992, Congress accepted the belated ratification of an amendment relating to the timing of congressional pay raises that was originally proposed as part of the Bill of Rights but that then became the Twenty‐seventh Amendment. Two other amendments that Congress proposed by the necessary majorities have failed in recent years—the Equal Rights Amendment, which would have prohibited discrimination on the basis of sex, and an amendment that would have granted congressional representation to the District of Columbia. Debate over the Equal Rights Amendment was particularly vigorous, and the amendment failed despite a questionable thirty‐nine‐month extension of the original seven‐year ratification proposed by Congress. Ironically, one argument raised against the amendment was that increasingly liberal judicial decisions such as Reed v. Reed (1971) and Frontiero v. Richardson (1973) had made it unnecessary. The decision liberalizing abortion in Roe v. Wade (1973) also raised concerns about how such an amendment might be interpreted by the Court (see Gender).

The judiciary can alter constitutional understandings through interpretation, but courts are subject to the amending check. Among proposed amendments in recent years that have been directed to modify or reverse court decisions are proposals concerning state legislative apportionment, school prayer and Bible reading, school busing, abortion, flag burning, and congressional term limits. The Eleventh, Fourteenth, Sixteenth, and Twenty‐sixth Amendments, while sometimes producing results that would have surprised their authors, show that such attempts can be successful. Although amendments serve as authoritative statements of popular will, they are, by comparison to judicial interpretations, extremely difficult to adopt; this difficulty exerts pressure on the courts to adapt constitutional interpretations to changing times. While there are obvious structural changes that can only be effected by amendment, debates on and off the bench about the proper extent of judicial interpretation demonstrate the perpetual tension and constant interplay that will always exist between formal constitutional amendment and judicially initiated changes in constitutional interpretation.

See also Constitutional Amending Process.

Bibliography

Richard B. Bernstein and and Jerome Agel , Amending America: If We Love the Constitution So Much, Why Do We Keep Trying to Change It? (1993).
David E. Kyvig , Explicit & Authentic Acts: Amending the U.S. Constitution, 1776–1995 (1996).
John R. Vile , Constitutional Change in the United States: A Comparative Study of the Role of Constitutional Amendments, Judicial Interpretations, and Legislative and Executive Actions (1994).
John R. Vile , Encyclopedia of Constitutional Amendments, Proposed Amendments, and Amending Issues, 1789–2002, 2d ed. (2003).

John R. Vile